How Will Bar Harbor Respond to Historic Cruise Ship Ruling By Federal Judge?

Written by Lincoln Millstein. First in a series of analysis of the federal cruise ship decision.

BAR HARBOR, March, 3, 2024 - The Association to Protect and Preserve Local Livelihood may continue to rattle its saber and prolong the pain of litigation to slow the inevitable, but the Town Council faces quite a different choice in the matter of cruise ship visitation.

A federal judge has now ordained that the town is engaged in an illegal activity - allowing many more cruise ship passengers to disembark than what voters approved on Nov. 8, 2022.

From the moment APPLL filed suit in December 2022, the council has been a willing partner of APPLL, agreeing to delay voter wishes and to oppose their representation in the litigation. Not until the judge allowed citizen petitioner Charles Sidman to join the lawsuit did the town attorneys grow a spine.

Now comes U.S. District Court Judge Lance Walker, whose 61-page decision last Thursday could not have been clearer, rejecting APPLL’s entire bucket list of demands, except for allowing a few sailors to come ashore.

Sidman, emboldened by the decision, told the Islander the time has come for the council to implement the voters’ wishes for a 1,000-passenger cap.

Furthermore, he said, any cruise ship which defies the local ordinance by trying to disembark more passengers than allowed will also be in violation of the law.

Walker did not pull any punches in his judicial opus last week.

It was nothing short of an indictment of the business people and enabling town officials who have turned this seaside burg into a hermetically sealed bubble with its own rules, ethos and sensibility. Residents were stunned and incredulous at Walker’s pervasive decision. “We’ve been manipulated and brainwashed for so long that we don’t think we have any rights,” said one village homeowner.

The bad behavior has been normalized for decades, so that every time a judge slaps the town, it feels like a shock. Over the last decade state judges have rejected the town’s sweeping zoning ordinances, its charter changes and challenges to its effort to cap vacation rentals.

But none of them possessed the gravitas of a sitting federal judge who wrote the longest and most detailed opinion thus far in a Bar Harbor court case.

Walker took considerable literary license in characterizing his views in colorful images which had some traditionalists cringing at his dramatic flair.

In ruling in favor of the town ordinance to limit cruise ship visitation, he wrote:

“I adhere to an antiquated notion that judges should not allow robes to suffocate a sense of judicial humility by steering wildly outside their lane into the role delegated to elected representatives. Whether the Ordinance is the wisest expression of democratic will is a question for which the Constitution does not hold the answer. 

Judge Waker sounded like he was thoroughly enjoying himself in taking down the plaintiffs who threw all but the galley sink in hopes that they might win some small token of a win.

Walker only gave them a slice - that the passenger cap did not apply to the crew of sailors.

In ruling against the assertion that state law facilitating economic development trumped home rule, Walker wrote,

“The picture of commercial development is not painted in primary colors alone but rather exists in a pastiche of other municipal considerations. A municipality that rationally exercises its home rule authority in a manner which is modestly in tension with the highest marginal commercial harvest, the type which is the sine qua non of the tourism office, is not an outlaw. 

Walker spent the first five of 61 pages introducing the opposing parties and their interest in the case.

On Page 6, he established that the industry and the town both recognized in 2008 that visitation by cruise ship passengers in a small town could not be an infinity pool of supply with the potential of drowning the town. He wrote that the so-called Town Council memorandum of agreement with the industry actually was an instrument profferred by the the president of the Cruise Lines International Association in July 2021 and accepted by the council as part of a “negotiation,” which Walker put in quotes.

“The proposal, accepted by the Town Council, involved a daily passenger reduction for the shoulder season and a new monthly cap of 65,000 visitors specifically to address concerns of capacity. Although public pressure was growing, the Bar Harbor Town Council, ultimately, was not then constituted to provide the pressure relief that many citizens hoped for.”

The town put up little resistance to CLIA despite public representation by then Town Manager Kevin Sutherland. In fact, the five council members who voted for CLIA proposal had little appetite for the 1,000-passenger cap which the citizens won at the ballot box.

Walker disagreed with the plaintiff businesses that the citizens ordinance discriminated against them.

“Ultimately, the costs and benefits of the various features of cruise tourism and the 1000-person daily passenger cap do not boil down to a neat finding of arbitrariness, irrationality, irrelevance, or discrimination,” Walker wrote. “A rational voter could take these features into consideration and conclude that a 1,000-passenger cap is an appropriate means of recalibrating the Town’s approach to this very local concern.”

Walker cited the Walsh Family-owned businesses specifically.

“When the Pier Owners and Tender LLCs disembark several thousand persons on a daily basis, they substantially burden Bar Harbor’s waterfront and intensify the experience of congestion more widely.”

Walker wrote that the industry has long acknowledged a need for a reservation system that uses caps and differentiated passengers coming by chip as opposed to by land.

“While cruise lines evidently consider local conditions in terms of the capacity of the area to provide their passengers with goods and services, they are not deterred by local ‘no vacancy’ conditions that would deter land-based visitors. 

“Upon arrival, cruise line passengers congregate in volume, in relatively intense morning and afternoon waves, though they also enhance congestion throughout the day. When they arrive, they are joined by a caravan of the vehicles that cater to them, congesting the waterfront area with buses, minibuses, vans, motor coaches, and taxis.

“Their arrival demands significant attention by municipal authorities, mostly law enforcement personnel hired to manage the press of people and conveyances. Cruise lines also have the relatively unique ability to transform the shoulder season, calling in Bar Harbor on a near daily basis in especially large cruise ships. These are distinct features of cruise tourism in Bar Harbor that make differential treatment rational.”

In addition to Sidman, whom Walker allowed as an “intervenor” defendant, he named three witnesses whom, he said, were influential in his decision: Seth Libby, Warrant Committee chair, Bill Horner, legendary island physician, and former police chief NateYoung.

“As attested to by witnesses Dr. Bill Horner, Nathan Young, and Seth Libby, the press of people in the downtown intensifies on cruise ship days. Dr. Horner described it as a dramatic growth in the press of people with a tremendous amount of traffic, particularly in the waterfront area. Mr. Young described sidewalks busy enough that he prefers to walk in the street when he has to go downtown on a cruise ship day. Mr. Libby described the scene similarly, stating that cruise ship visits produce greater crowding. 

“Horner, Libby, and Young all testified that they voted in favor of the initiative because they felt that elected officials had failed to act in a timely or meaningful manner to curtail the impact of cruise ship visits. I find that these witnesses provided a fair and accurate assessment of the impact of cruise ship visits in terms of both the intensification of congestion and the undesirability of a trip downtown for many residents on ‘cruise ship days,’ which increasingly means most days of the cruise ship season.”

Walker agreed with Sidman’ assertion that the citizens are opposing the industry’s business model and not interstate commerce laws.

“Cruise lines are utilizing ever larger vessels to achieve unprecedented economies of scale, principally for shareholder profit. At the same time, cruise lines will not call at a port unless the entire complement of passengers is permitted to come ashore.

“These characteristics of cruise tourism make it unworthy of overly solicitous judicial action that would negate an exercise in democratic self-determination that is better informed of existing, localized conditions. Nothing in the Constitution dictates municipal obeisance to the economies of scale of cruise tourism. Nor, as far as I can tell, does the dormant Commerce Clause legislate adherence.

“The history of cruise tourism at Bar Harbor demonstrates the unique challenges that cruise tourism imposes on Bar Harbor. These challenges gave rise to a democratic effort, where the voters weighed the relevant local commercial and noncommercial interests and ultimately adopted the Ordinance. 

“Modern-day, board-directed cruise practices (particularly those of foreign-flagged cruise lines) do not allow much room for smaller municipalities to manage their local experiences based on daily limits on the number of passengers coming ashore.”

Despite his use of florid language, the QSJ’s panel of unofficial judicial experts stated that Walker covered the entire waterfront of plaintiff objections with aplomb and even cleverly gave them an empty victory on the question of limitations on disembarking crew, who are protected by federal law in ways the passengers are not. 

APPLL’s chances of success in a appeal are slim, they stated.

“Walker accurately explains that their problem is not how to limit shore trips by cruise passengers, but whether they can profit using half-empty cruise ships that will stay below the 1,000 limit (including disembarking crew),” stated one former jurist.

NEWS ALERT – LEGISLATURE TO TAKE UP LD 2065

THE DEPARTMENT OF MARINE RESOURCES WILL STIFLE MAINE VOICES IF LD 2065 PASSES

LD 2065 is a toxic stew of legislation.  Right now, 5 people can request a hearing for aquaculture leases. The Department of Marine Resources (DMR) wants that number to go to 25.  That 5x increase has little explanation. Originally, DMR said it was part of the Administrative Procedures Act – but when challenged DMR admitted it wasn’t part of the act at all!  

Right now, leases are passed at a rate of 95% (new calculations to include 2023 are underway).  The one place people can have a voice is at a lease hearing or scoping.

DMR is also promoting removing the number of hearing notices in local newspapers from 2 to 1. The rationale given was that it is too difficult to figure out the publishing schedule.  What this means is for small rural fishing communities that rely heavily on their weekly newspapers – less information will be coming your way if this bill passes.

LD 2065 also looks to convert experimental leases to standard 20-year leases without a hearing unless 25 people speak up.

It’s true some of the smaller leases have been held up too long – but the reason is lack of staff.  A question today: If you don’t have the staff to oversee the hearing process, to oversee the regulation, and oversee the impact to the environment – Why is Maine rushing headfirst into something that could have impacts for generations to come?  

Literature reviews show that without planning there could be serious impacts.  You can read this study here.

We urge you to attend and speak at the hearing on LD 2065.  If you can be there in person, the hearing is at 1:00 on Thursday, February 1st in the Marine Resources Committee room.

If you want to testify remotely - Here’s how you can:

  1. Go to this link: https://legislature.maine.gov

  1. Scroll to the bottom of the page where it indicates, "testimony submission" and click that button.

  1. Select public hearing.

  1. Scroll down on that same page and select committee "Marine Resources”. Underneath that, chose the date - Feb. 1

  1. That opens the page further and you choose the bill you would like to testify on - LD 2065

  1. Check "I would like to testify electronically.” You are not required to submit testimony, but it is advised.

  1. You then must choose - for /against/neither for nor against.

Make your choice. Protect Maine is opposing LD 2065.

Add your testimony and all your personal information, most importantly, the email so they can send you a Zoom link to join. You will not get the link until the day of the hearing.

Hope to see you on Feb. 1 at 1:00 for the hearing.

Cooke Aquaculture Lease Renewals

The largest industrial scale finfish aquaculture owner in Maine waters is Cooke Aquaculture – a Canadian based company with global reach. Cooke owns 640 acres approx. in Maine waters for raising farmed finfish. There are two leases that are up for renewal, one in Beals at Spectacle Island and the other in Machiasport. Protect Maine and many other people have filed for a hearing on the fish factory in Beals.

Did you know that even though the Machiasport lease is 40 acres it could be renewed automatically for 20 years. ----- Unless interested parties like you call for a hearing? Protect Maine will continue to keep you informed of upcoming renewals but, you may also sign up to receive renewal notices directly at  http://maine.gov/  

Additionally, you may let the Department of Marine Resources know that you support a public hearing anytime the ownership of 40 acres of Maine waters for 20 years is up for renewal, by emailing them at DMRaquaculture@maine.gov



Protect Maine Supporters Speak Out Against Industrialization of Rockweed

Two supporters of Protect Maine testified at the legislature on LD 2003, a bill that would have industrialized rockweed harvesting. Rockweed is an important habitat for the ecosystem and baby lobsters.  Read more here about baby lobster habitat. Read their testimonies in full below.

Thanks to Senate President Troy Jackson for pulling his support of the bill.

Protect Maine supporter Kelsey Fenwick testifying against LD 2003.

Kelsey Fenwick

Good Afternoon, 

Senator Cameron Reny, Reprsentative Allison Helpler and members of the Joint Standing Committee on Marine Resources.

My name is Kelsey Fenwick, and I am a sternman fishing out of Port Clyde. Additionally, I am a consultant to Protect Maine’s Fishing Heritage Foundation, an organization that opposes industrial scale aquaculture but supports small scale owner- operator aquaculture.

I have been lobstering up and down the coast of Maine for around 10 years now, and in that time I’ve grown passionate about protecting the Gulf of Maine and it’s many resources. 

As you are aware, the Gulf of Maine is under exceeding pressure, from offshore wind farm development to industrial scale aquaculture to environmental changes. 

Rockweed is important to preserving a healthy marine ecosystem. Rockweed provides food, habitat, carbon dioxide reduction, and erosion protection. As a primary producer, rockweed serves as a base food source that supports the entire foodweb. Rockweed traps sediments and heavy metals, reducing algal blooms. Rockweed’s buffering effect protects intertidal zones: reducing the impacts of storm surges and combating rising sea levels. 

 I oppose this bill because I fear turning rockweed into a large scale commercial fishery is going to lead to the depletion of the natural population, which will definitely have a negative impact on our coastal ecosystems. If ocean acidification is a risk to the Gulf of Maine, this bill does not stand to help. If shoreline erosion and rising sea levels are a concern, this bill does not help combat those either. We need rockweed in order to have a healthy Gulf of Maine. 

I strongly encourage the council to vote no on this bill in order to protect  the Gulf of Maine and our precious marine ecosystem. Thank you for your time.

Protect Maine supporter Camden Reiss testifying against LD 2003.

Camden Reiss

Good Afternoon,

Senator Cameron Reny, Reprsentative Allison Helpler and members of the Joint Standing Committee on Marine Resources.

My name is Camden Reiss, I am a shellfish harvester in the town of Brunswick, in which I serve as chair of the marine resources committee. I am a consultant to Protect Maine’s Fishing Heritage Foundation, an organization that opposes industrial scale aquaculture but supports small scale owner- operator aquaculture.

I have been working the intertidal zone all over the coast of Maine digging bloodworms for around 12 years now, which has given me a chance to observe and learn about the marine ecosystem. I learned about the importance of preserving the keystone species and habitat, such as eelgrass and other naturally occurring filter-feeders.

I have visited hundreds of different coves and the ones with bountiful rockweed usually seem to have the most commercial resources. Rockweed is important to preserving a healthy marine ecosystem. To back up my claim, I sifted through some rockweed literature and found aninteresting article called Rockweed in Maine’s Intertidal Zone, written by Eva Leggae, a professor from Dartmouth. The importance and over all function of rockweed is described in the following quote: 

“Heralded by some ecologists as the “old growth forest” of the sea, Ascophyllum is an essential ecosystem engineer upon which more than 150 marine species depend”. Ascophyllum reduces physical stresses (such as drying, summer heat, high light, or wave exposure) for the affiliated intertidal communities. Though many species benefit indirectly from rockweed, most directly depend on its presence to survive; some, such as epiphytes and larvae, even affix themselves directly to the surface of the algae. In addition to providing a vital habitat, rockweed sequesters carbon and nitrogen, provides energy to the food web by feeding grazers, and helps nutrients stay distributed throughout the water”

The issue I take with this bill is that opening rockweed up as a commercial fishery is going to lead to the depletion of the natural population, which will definitely have a negative impact on our coastal ecosystems. Maine’s coastline is already suffering enough due to the effects of global warming and large-scale industrial aquaculture.

I strongly encourage the council to vote no on this bill in order to protect our precious marine ecosystem. Thank you for your time.

Aquaculture Lease Forum Gathers State and Local Perspectives

This Article originally appeared in The Lincoln County News. Written by Johnathan Riley

Audience members listen to discussion during a special Damariscotta Select Board meeting on Tuesday, Nov. 21 at the Coastal Rivers Conservation Trust in Damariscotta. The meeting was focused on addressing growing concerns about aquaculture on the Damariscotta River and in surrounding town’s waterways and the role of municipalities in the leasing process. (Johnathan Riley photo)

In a special Damariscotta select board meeting held Tuesday, Nov. 21, representatives from surrounding towns, oyster farmers, clam diggers, Maine Department of Marine Resources, and the public voiced concerns and support for aquaculture in local waterways.

According to event host and organizer Tom Anderson, a Damariscotta Select Board member, the forum at Coastal Rivers Conservation Trust in Damariscotta was put together because of the growing dialogue in Lincoln County surrounding aquaculture moratoriums and a need to find a balance in the usage of the local waterways between industry, recreation, and beauty.

“The goal is to understand what a good balance is between a viable oyster farming industry, the safety of our waterways, and just general beauty,” Anderson said. “I think all of those things come into play when we’re trying to work together.”

Earlier this year, Waldoboro and South Bristol voters passed aquaculture lease moratoria, so that ordinances can be developed and studies can be done on affects of aquaculture on the waterways of each town.

However, according to a letter from the Maine Department of Marine Resources, these moratoria, inside Lincoln County and beyond, are not recognized by the state, citing that coastal waters below the intertidal zone are considered public lands within the state’s jurisdiction and not the municipalities.

Amanda Ellis, director of the department of marine resources aquaculture division, said the purpose of her presence at the meeting was to explain the state’s aquaculture leasing process, as well as to learn from the concerns from the people at the meeting.

Ellis said there were parts of the leasing process that may be difficult for municipalities, and the public, to approach and engage with.

“We’re really in a listening mode right now, and one thing we’re hearing from stakeholders is maybe that there are some aspects of the process that aren’t very approachable,” Ellis said. “So we’re taking in that feedback and learning from it.”

Ellis also took the opportunity to dispel some common misunderstandings about the departments function and the implementations of the law, reminding members of the audience the department of marine resources is an extension of the executive branch of government, with power to implement those laws, regulations, and leasing criterion, but posses none to change them.

“Often people talk to us like we’re pro-aquaculture or pro-clammer and put us in this position of trying to take sides, to look like we do, and we’re really not, we are a neutral body,” Ellis said.

State Sen. Cameron Reny, D-Bristol said the Legislative literature review currently in progress by the DMR on the existing body of research, studying the effects soft-shell clams and oysters have on one another, is happening because state legislators are listening to the concerns of residents of Maine’s coastal towns.

Damariscotta Select Board member Tom Anderson gives opening remarks at a special meeting of the board at Coastal Rivers Conservation Trust on Tuesday, Nov. 21. Anderson organized the meeting as a forum to discuss concerns about aquaculture leases in local waterways. (Johnathan Riley photo)

Reny also said that in order to change the laws, regulations, and the aquaculture leasing criterion, residents need to work with their legislators, not the department of marine resources.

“(The DMR) can’t use criteria that doesn’t exist or make one, but we can make one, tell us what you want,” Reny said.

According to the DMR website, in order for an aquaculture lease to be approved, it may not reasonably interfere with the ingress and egress of riparian owners, navigation, fishing, or other uses of the area; other aquaculture uses; the ability of the site and surrounding areas to support ecologically significant flora and fauna; or the public use or enjoyment within 1,000 feet of beaches, parks, or docks owned by local, state, or federal governments or certain government-owned conserved land.

Additionally, for standard leases, which are leases up to 100 acres for 20 years, the applicant must demonstrate that there is an available source of organisms to be cultured for the lease site. The lease must not result in unreasonable impact from noise or light at the boundaries of the site, and it must comply with DMR rules to minimize the visual impact.

David Kallin, an attorney with Drummond Woodsum representing Preserve Maine’s Fishing Heritage Foundation, a nonprofit working on banning industrial scale aquaculture leases from Maine waters, said at the meeting that the letter the DMR put out asserting its jurisdiction was inaccurate, and that the view of the foundation is that there’s room for local regulation.

“Maine is a home rule state, one of the things that’s always been great about Maine is it has the ability to have different local communities make different decisions,” Kallin said.

South Bristol Select Board member Adam Rice advocated for an unbiased overview of the leasing process and commended the aquaculture committee in South Bristol for its efforts in finding common ground.

Waldoboro Town Manager Julie Kiezer said the town of Waldoboro doesn’t want aquaculture leases to populate the Medomak River; something she said could affect the clam population of the river.

“Damariscotta may be the oyster capital of Maine, but we’re the clam capital,” Kiezer said. “We have families that rely on our mudflats.”

Kiezer said that Waldoboro was in a good place to impose a moratorium because the town has so few aquaculture leases on the Medomak River, and that a study on the health of the river could be completed now.

While Waldoboro does not currently have someone lined up to do the study, Keizer said the town is in the process of seeking state funding and finding a faculty member from the University of Maine who would be interested in taking it on.

Glenn Melvin, vice chair of the Waldoboro Shellfish Committee and 40-year clamdigger, said he wasn’t willing to risk hurting the soft-shell clam population the way Damariscotta did when the oyster farmers reintroduced oysters.

“We don’t have any interest in following you or being you, we being Waldoboro,” Melvin said. “You may consider it a success story. We may consider it a disaster.”

Mark Gallagher, of Protect Maine’s Fishing Heritage Foundation, speaks at a special Damariscotta Select Board meeting at Coastal Rivers Conservation Trust on Tuesday, Nov. 2. The meeting was put together by select board member Tom Anderson for the purpose of discussing aquaculture leases in the Damariscotta River. (Johnathan Riley photo)

Bill Mook, of Mook Sea Farms, who has been farming the Damariscotta River since 1985, spoke to the claims that oysters are killing the soft-shell clams and said the literature review concerning the effects of oysters and soft-shell clams on one another isn’t going to yield results unless the research considers all the environmental factors that come into play, such as increasing acidity and water temperature.

“You’re not going to get an answer about whether oysters are killing all of the soft-shell clams unless you understand how these species are being affected by all these environmental changes,” Mook said.

Mook provided anecdotal evidence about the lack of effect oysters have soft-shell clams, and said when clam larvae are in the water, they set all over the oysters, forming byssal threads the way mussels do, and if oysters were bad for soft-shell clams, its larvae wouldn’t be doing that.

“If oysters were this black hole that everybody seems to think they are, that wouldn’t happen,” Mook said.

Anderson asked Mook about the effects of the concentration of the oyster farms, citing a statistic from the department of marine resources that said 163 acres of the Damariscotta River has oyster cages on its surface.

Mook said that number was misleading when talking about concentration of oysters and the cited acreage was for the total space of all aquaculture leases on the river and not surface area covered by oyster cages. Were the approximately 7,000 oyster cages on the river condensed, Mook said it would only cover about three and a half acres.

“One hundred and sixty acres of coastal waters are being leased, but the actual gear is occupying a very small fraction,” Mook said.

Anderson closed the meeting thanking all those who attended and said he felt the meeting was constructive and helpful, and that dialogue is always a positive activity to engage in.

“We’re sharing information and we’re getting answers and I think we came up with a couple of suggestions the DMR might take into consideration as well as our legislators,” Anderson said. “I thought everyone was professional tonight and I appreciate it.”

Lincoln County Television filmed the forum, which is available for viewing at lctv.org.